Judge: Mark A. Young, Case: 24STCV00238, Date: 2024-10-08 Tentative Ruling
Case Number: 24STCV00238 Hearing Date: October 9, 2024 Dept: M
CASE NAME: A.B., et al., v. CooperSurgical
Inc., et al.
A.B., et al., v. CooperSurgical
Inc., et al.
E.F., et al., v. CooperSurgical
Inc., et al.
A.H., et al., v. The Cooper
Companies, et al.
CASE NOS.: 23STCV30523; 24STCV00234; 24STCV00238; 24STCV01785
MOTION: The Cooper Companies, Inc.’s Demurrer
to the Various Complaints/Motion to Strike
HEARING DATE: 10/9/24
LEGAL STANDARD
A demurrer for sufficiency tests whether
the complaint states a cause of action. (Hahn v. Mirda (2007) 147
Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations
liberally and in context. In a demurrer proceeding, the defects must be
apparent on the face of the pleading or via proper judicial notice. (Donabedian
v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the
pleadings alone and not the evidence or other extrinsic matters. Therefore, it
lies only where the defects appear on the face of the pleading or are
judicially noticed. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff
need only allege ultimate facts sufficient to apprise the defendant of the
factual basis for the claim against him. (Semole v. Sansoucie (1972) 28
Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions,
deductions or conclusions of fact or law alleged in the pleading, or the
construction of instruments pleaded, or facts impossible in law.” (S. Shore
Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations
omitted.)
A special demurrer for uncertainty is
disfavored and will only be sustained where the pleading is so bad that
defendant cannot reasonably respond—i.e., cannot reasonably determine what
issues must be admitted or denied, or what counts or claims are directed
against him/her. (CCP § 430.10(f); Khoury v. Maly’s of Calif., Inc.
(1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat
vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)
Any party, within the time allowed to
respond to a pleading may serve and file a notice of motion to strike the whole
or any part thereof. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).)
The court may, upon a motion or at any time in its discretion and upon terms it
deems proper: (1) strike out any irrelevant, false, or improper matter inserted
in any pleading; or (2) strike out all or any part of any pleading not drawn or
filed in conformity with the laws of California, a court rule, or an order of
the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767,
782 [“Matter in a pleading which is not essential to the claim is surplusage;
probative facts are surplusage and may be stricken out or disregarded”].)
“Liberality in permitting amendment is
the rule, if a fair opportunity to correct any defect has not been given.” (Angie
M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of
discretion for the court to deny leave to amend where there is any reasonable
possibility that plaintiff can state a good cause of action. (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show¿in
what manner¿plaintiff can amend the complaint, and¿how¿that
amendment will change the legal effect of the pleading.¿(Id.)
REQUEST FOR JUDICIAL NOTICE
Defendant the Cooper Companies Inc. request judicial
notice of CooperSurgical’s 02/14/2024 FDA Recall Notice regarding LGGG lots
231020-018741, 231020-018742, and 231020-018743. (Covington Decl., Ex. A.) The
existence of the Federal Drug Administration’s records documents are properly
noticed. (Evid. Code § 452(c), (h).)
ANALYSIS
Demurrers
This hearing regards
four separate demurrers filed by Defendant the Cooper Companies Inc. against four
separate complaints brought by pseudonymous plaintiffs for personal injuries
arising from Defendants’ allegedly defective fertility products. As to each
complaint, Cooper Companies argues that the entire complaint fails because Cooper
Companies was not, in fact, a direct actor and the complaints do not allege facts
to support indirect liability through the conduct of its subsidiary. The Cooper
Companies also move to strike Plaintiff AH’s request for punitive damages.
Cooper Companies note that parent corporations are generally not
liable for acts of its subsidiaries. (Santa Clarita Org. for Planning &
Env’t v. Castaic Lake Water Agency (2016) 1 Cal.App.5th 1084, 1104, citing U.S.
v. Bestfoods (1998) 524 U.S. 51, 61.) “[A]ctivities that involve the
facility but which are consistent with the parent’s investor status, such as
monitoring of the subsidiary’s performance, supervision of the subsidiary’s
finance and capital budget decisions, and articulation of general policies and
procedures, should not give rise to direct liability.” (Id. at 72.) A
parent company may only be “directly
liable for its own actions” where “the alleged wrong can seemingly be traced to
the parent through the conduit of own
personnel and management and the parent is directly a participant in the wrong
complained of.” (Id. at 64–65.)
Looking at each pleading in turn,
the complaints allege a direct cause of action against Cooper Companies. For instance,
the complaint in 23STCV30523 alleges that Cooper Companies is a “global medical
device corporation” incorporated in Delaware with its principal place of
business located in California. (Compl., ¶ 10.) The Cooper Companies allegedly
“distributed its products, including the above-referenced embryo culture media,
within the State of California.” (Id.) CooperSurgical is a wholly owned
subsidiary of The Cooper Companies, which primarily manufactures medical
devices for women’s healthcare and fertility markets, including the subject embryo
culture media. (¶ 11.) The Cooper Companies marketed and promoted their embryo culture
media for use as the essential medium in which fertility clinics can fertilize
eggs. (¶ 31.) The Cooper Company marketed that their embryo culture media was
properly tested. (¶ 35.) The Cooper Company manufactured,
marketed, distributed, and/or sold their embryo culture media while promoting that their embryo
culture media was tested by superior methods, including a Mouse Embryo Assay to
ensure that no embryotoxic exposure would occur. (¶ 36.)
Defendants knew or should have known that their embryo culture
media was not properly and/or adequately tested and/or inspected for
contamination, and thus posed a severe risk of destruction to growing human
embryos. (¶ 37.) The Cooper Companies allegedly did not properly test the
impacted lots of their Embryo Culture Media until after receiving formal
complaints from numerous fertility clinicians. (¶ 52.) The Cooper Companies allegedly
failed to properly inspect and/or test their embryo culture media, including
the recalled embryo culture media lots. (¶ 54.)
The above facts aver that Cooper Companies (not Cooper
Surgical alone) manufactured, designed, manufactured, distributed, and/or sold
the embryo cultures at issue. Cooper Companies point to no authority which
suggests any heightened pleading standard would apply to the strict and
negligent products liability claims at issue. Further, Cooper
Companies show no specific allegations which would contradict the general
allegations that Cooper Companies manufactured, designed, distributed,
marketed, and sold the subject defective embryo media. (See Gentry v. eBay,
Inc (2002) 99 Cal.App.4th 816, 826–27 [specific allegations in complaint
contradicted conclusory assertions of liability].) Liberally interpreted, no
portion of the cited brochure by CooperSurgical contradicts the well-pled facts
noted above. (Compl., ¶ 2, fn. 1.)
The complaints in 24STCV00234
and 24STCV00238 likewise alleges that the
Cooper Companies distributed the embryo culture media at issue. (Compls., ¶¶ 10,
37, 45, 56, 62, 72-73, 81, 88-91.) The First Amended Complaint (FAC) in
24STCV01785 similarly alleges that the Cooper Companies distributed,
manufactured, marketed and sold the embryo culture media at issue in this case.
(FAC ¶¶ 7, 27, 35, 46, 51, 80.) Thus, the above analysis would hold true for
each demurrer.
Accordingly, the
demurrers are OVERRULED.
Motion
to Strike Punitive Damages
The Cooper Companies moves to strike
Plaintiff AH’s claim for punitive damages. The analysis on Cooper Surgical’s
identical motion would equally apply here.
Civil Code section 3294 authorizes the recovery of punitive damages in
non-contract cases where “the defendant has been guilty of oppression, fraud,
or malice . . ..” (Civ. Code § 3294(a).) “‘Malice’ means conduct which is
intended by the defendant to cause injury to the plaintiff or despicable
conduct which is carried on by the defendant with a willful and conscious
disregard of the rights or safety of others.” (Id. § 3294(c)(1).) “Oppression”
means despicable conduct that subjects a person to cruel and unjust hardship in
conscious disregard of that person’s rights. (Id. § 3294(c)(2).) “Fraud” means
an intentional misrepresentation, deceit, or concealment of a material fact
known to defendant with the intention on the part of defendant of thereby
depriving a person of property or legal rights or otherwise causing injury. (Id.
§ 3294(c)(3).) Punitive damages thus require more than the mere commission
of a tort. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95.) Specific
facts must be pled to support a claim of punitive damages. (Hillard v. A.H.
Robins Co. (1983) 148 Cal.App.3d 374, 391-92.)
To recover punitive
damages for malice or oppression, plaintiff must plead facts supporting an
intent to harm or “despicable conduct” carried about with a willful and
conscious disregard of the rights or safety of others. (Civ. Code §3294(c).) Despicable
is a powerful term used to describe circumstances that are “base,” “vile,” or
“contemptible.” (Coll. Hosp., supra, 9 Cal.4th 704, 726.) The statute
“plainly indicates that absent an intent to injure the plaintiff, “malice”
requires more than a “willful and conscious” disregard of the plaintiffs'
interests. The additional component of “despicable conduct” must be found.” (Ibid.) This
includes only truly egregious behavior. (See, e.g., Angie M. v. Superior
Court (1995) 37 Cal.App.4th 1217, 1221—1222 [vile, base, or
contemptible conduct found where doctor engaged in sexual intercourse with
minor, plying the minor with drugs and alcohol, and paying the minor to procure
illegal substances for him]; Pfeifer v. John Crane, Inc. (2013) 220
Cal.App.4th 1270, 1280 [finding despicable conduct when a manufacturer “fully
understood that asbestos dust endangered workers, but did not issue warnings to
customers” until much later and using the products in ways that generated
considerable asbestos dust].)
Further, “[a]n employer
shall not be liable for [punitive] damages ..., based upon acts of an employee
of the employer, unless the employer had advance knowledge of the unfitness of
the employee and employed him or her with a conscious disregard of the rights
or safety of others or authorized or ratified the wrongful conduct.... With
respect to a corporate employer, the advance knowledge and conscious disregard,
authorization, [or] ratification ... must be on the part of an officer,
director, or managing agent of the corporation.” (Civil Code § 3294.) The
California Supreme Court interpreted the “latter statement as requiring the
officer, director, or managing agent to be someone who ‘exercise[s] substantial
discretionary authority over decisions that ultimately determine corporate
policy.’” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 577.)
Plaintiff’s punitive damages claim
reiterates the allegedly negligent failures of Defendants to warn, recall, and/or
identify the defective embryo culture batches. Generally, Defendants knew or
should have known that the recalled embryo culture media posed an
unreasonable risk to human embryos. Plaintiff relies on the general allegations
that such negligent acts were done undertaken “deliberately”. (FAC ¶¶ 42-43,
62, 76, 88, 97, 110.) Plaintiff also alleges that Defendants’ officers,
directors, and/or managing agents learned of the defects in its embryo culture
media from complaints from physicians, fertility providers, and/or customers
and/or its own employees, but deliberately continued to manufacture and sell
the defective culture media without warning physicians, fertility providers,
and/or customers. (¶ 43.) However, the specific facts alleged do not allow for
an inference of despicable conduct. Plaintiff does not allege when these
managing agents learned of the defects such that they “deliberately” continued
to manufacture, sell and not recall the embryo media after learning of the
defects. Plaintiff only pleads that she was damaged by the defective embryo
cultures sometime in late November 2023, and that Defendants recalled the
impacted embryo cultures in early December 2023. Plaintiff does not allege that
Defendants learned of any defects with the subject embryo media prior to
Plaintiff’s alleged injury. Plaintiff has not established that Defendants
consciously or willfully disregarded the safety of others without further,
specific facts showing that Defendants’ managing agent(s) actually knew of the
alleged manufacturing, design, or warning defects at the time the embryo media
was placed into the market.
Accordingly, Defendants’ motion to strike
is GRANTED with leave to amend.
Plaintiff may file an amended complaint
within 20 days in case no. 24STCV00238.
In the other matters, answers are
ordered within 20 days.